Source: http://traffic.libsyn.com/techexperts/FCPA_Compliance_A_Case_for_Integrated_Technology_Solutions.mp3
Friday, January 31, 2014
FCPA Compliance — A Case for Integrated Technology Solutions
This podcast focuses on how technology can help companies strengthen their FCPA compliance programs and make them more effective and defensible. Learn the importance of a technology solution that is configurable to address a company's specific business needs that include: regulatory intelligence, policy management, monitoring and ongoing auditing of controls, and investigation of incidents and allegations.
Judge Shows Compassion Toward Law Firm for Apple Leak
A federal judge showed leniency toward law firm Quinn Emanuel for an evidence leak that allowed its client, Samsung, to get its hands on a confidential license agreement between two rivals, Apple and Nokia.
legal aid legal aid eugene oregon legal aid society legal counsel legal help
New Year’s Tech Resolutions for Practicing Attorneys
Is your legal practice less efficient because of out-of-date technology? In today's world of accelerating change, it can be difficult to keep up with client expectations. In this edition of The Kennedy-Mighell Report, legal technology experts Dennis Kennedy and Tom Mighell discuss New Year's tech resolutions. The topics include using instant messaging, implementing social media, updating operating systems, and much more. Tune in to find new ways to future-proof your practice or firm.
California Court of Appeal Clarifies Rights of Dissenting Minority Shareholders Under California Corporation Code § 1312(b)
In Busse v. United Panam Fin. Corp., No. G046805, 2014 Cal. App. LEXIS 11 (Cal. App. Jan. 8, 2014), the California Court of Appeal, Fourth Appellate District, held that when parties to a buyout are under common control, dissenting minority shareholders have the right to set aside or rescind an invalid corporate buyout under Section 1312(b) of the California Corporations Code. The Court also held that dissenting minority shareholders may not seek monetary damages under Section 1312(b). This decision clarifies that Section 1312(b) acts as a limited exception to Section 1312(a) of the California Corporations Code by providing dissenting shareholders not only with the general remedy of appraisal, but also with the right to stop or rescind a buyout if the transaction is invalid. Furthermore, Busse emphasizes that dissenting shareholders may not seek damages arising out of a buyout, even in common control situations.
Plaintiffs were minority shareholders of United Panam Financial Corporation (“Panam”), a publicly traded company that made subprime loans on used cars. Defendant Guillermo Bron (“Bron”) owned 38% of Panam’s stock and generally had power over the corporation’s affairs. Bron allegedly developed a buyout scheme in which he and his partner would acquire Panam’s stock at a bargain price. In furtherance of this plan, Bron allegedly had Panam’s directors set up an independent committee that valued the stock far below book value. Later, Panam’s shareholders approved the buyout by Bron’s group, and the transaction was completed sometime after February 24, 2011.
Plaintiffs filed a class action for breach of fiduciary duty and sought either to rescind the buyout or to receive rescissory damages under Section 1312 of the California Corporations Code. Section 1312 governs the rights of minority shareholders who dissent from corporate buyouts or mergers. Section 1312(a) limits the rights of dissenting minority shareholders exclusively to an independent appraisal of their shares’ value. Consequently, under Section 1312(a), dissenting shareholders do not have a right at law or in equity to attack the validity of a buyout or merger. Section 1312(b), however, provides that, if the parties to a merger or buyout are under common control:
[Section 1312(a)] does not apply to any shareholder . . . who has not demanded payment of cash for that shareholder’s shares pursuant to [chapter 13]; but if the shareholder institutes any action to attack the validity of the reorganization or short-form merger or to have the reorganization or short-form merger set aside or rescinded, the shareholder shall not thereafter have any right to demand payment of cash for the shareholder’s shares pursuant to [chapter 13].
The primary question presented in Busse was whether Section 1312(b) provided dissenting minority shareholders with the right to sue for rescissory damages (i.e., monetary damages).
The trial court sustained Bron’s demurrer, reasoning that (1) plaintiffs’ complaint did not sufficiently allege Bron’s common control and Section 1312(b) was therefore inapplicable and (2) rescissory damages are not available under Section 1312(b). Plaintiffs appealed.
The Court of Appeal reversed the trial court’s decision that plaintiffs failed to allege sufficient facts showing Bron held common control. Common control — which occurs if one party is directly or indirectly controlled by, or under common control with, another party to a transaction — must exist for Section 1312(b) to apply. The Court of Appeal determined Bron held at least indirect control over Panam because Bron possessed 38% of the voting power of Panam’s shareholders, Bron was chairman of the board of directors, and Bron acknowledged he possessed substantial influence over the company’s affairs. Thus, the Court of Appeal concluded that plaintiffs sufficiently alleged facts showing Bron held common control.
Next, the Court of Appeal addressed whether under Section 1312(b) Panam’s dissenting minority shareholders possessed the right to rescind the buyout or, in the alternative, to receive “rescissory damages.” The Court affirmed the trial court’s judgment that under Section 1312(b) Panam’s dissenting minority shareholders possessed the right to rescind or set aside the buyout. Furthermore, the court affirmed that under Section 1312(b) Panam’s dissenting shareholders were barred from seeking rescissory damages.
The Court of Appeal began its discussion of shareholders’ rights under Section 1312(b) with a review of the legislative and judicial history of Section 1312. The history of Section 1312 made clear that courts and the legislature intended to limit dissenting shareholders’ remedies to an appraisal of their shares. With this limitation in mind, the legislature recognized the potential for abuse in transactions where parties to a buyout are under common control. Indeed, in these transactions the controlling party is, in effect, dealing with itself. To protect minority shareholders from abuse in common control situations, the Court of Appeal determined Section 1312(b) provides a dissenting minority shareholder not only with an appraisal remedy, but also with the remedy of setting aside or rescinding a buyout. However, the Court found this was the only additional remedy available to shareholders, and the courts and legislature never intended to provide minority shareholders with the right to seek monetary damages under Section 1312(b).
Thus, while the Court of Appeal affirmed the trial court’s judgment that plaintiffs were precluded from seeking “rescissory damages,” it reversed the trial court’s judgment that plaintiffs did not allege sufficient facts to demonstrate Bron’s common control and found that Section 1312(b) applied. Consequently, the Court of Appeal remanded for the resolution of whether the minority shareholders of Panam may rescind Bron’s buyout under Section 1312(b).
Busse clarifies what remedies are available to dissenting minority shareholders under Section 1312(b). Shareholders have the general right to an appraisal of their shares’ value. Additionally, Section 1312(b) gives dissenting shareholders the right to rescind or set aside a merger or buyout. This additional remedy helps protect minority shareholders in common control situations, which are particularly susceptible to fraud and abuse. However, minority shareholders are still barred from seeking monetary damages or, as stated in Busse, rescissory damages under Section 1312(b).
legal help legal information legal news legal services lemon law
Sidley Austin Looks to Riverbed to Build a Broader Network
Sidley Austin had a legacy network connecting its 17 offices in the U.S., Asia and Europe, resulting in slow data transfers and limiting the firm's ability to centralize IT resources. To create better connectivity between offices, the firm upgraded its network with Riverbed appliances.
Source: http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202473966828&rss=rss_ltn
A State Judge’s Perspective On E-Discovery
The Honorable John M. Tran uses the terms digital natives and digital immigrants when referring to judges. Coined by author Marc Prensky, digital natives are those born into technology and digital immigrants are learning the field as they go. It’s not uncommon for judges to be digital immigrants, forcing them to confront issues on the bench that they have never experienced. In this edition of Digital Detectives, hosts Sharon D. Nelson, Esq. and John W. Simek invite long-time friend Judge Tran to discuss how his colleagues keep up to date on technology, his views on cooperative discovery as both a judge and a past litigator, and what he’s seen as the best way to address discovery in the courtroom.
Judge John M. Tran started his career at a boutique litigation law firm in Virginia where he had extensive experience in e-discovery matters, in both the state and federal court. Now he is a state judge in the Fairfax Circuit Court, in the 19th judicial circuit of Virginia. He is a graduate of the George Washington University and the George Washington University Law School.
Special thanks to our sponsor, Digital WarRoom.
Judge John M. Tran started his career at a boutique litigation law firm in Virginia where he had extensive experience in e-discovery matters, in both the state and federal court. Now he is a state judge in the Fairfax Circuit Court, in the 19th judicial circuit of Virginia. He is a graduate of the George Washington University and the George Washington University Law School.
Special thanks to our sponsor, Digital WarRoom.
power attorney power of attorney power of attorny private attorney private lawyer
Contractor Can’t Sue City on Bid
In this suit arising out of a city procurement bid process, won by a third party, plaintiff’s complaint identifies plaintiff and defendant as a joint venture but the attached bid proposal describes them as “two primary subcontractors,” and the Richmond Circuit Court grants the city’s demurrer but overrules the demurrer on plaintiff’s breach of contract ...
Source: http://valawyersweekly.com/2014/01/02/contractor-cant-sue-city-on-bid/
De Blasio Drops Appeal Of 'Stop And Frisk'
New York City Mayor Bill de Blasio moved toward fulfilling a major campaign promise on Thursday: he announced the city will settle a long-running lawsuit against the police department's stop-and-frisk policy. A federal judge last year found that the NYPD violated the civil rights of blacks and Latinos with its aggressive tactics. Former Mayor Michael Bloomberg's administration appealed the ruling, but de Blasio won a landslide electoral victory in 2013 partly by promising to reform the stop-and-frisk policy. Now, some New Yorkers are worried about a possible rise in crime.
» E-Mail This » Add to Del.icio.us
Source: http://www.npr.org/2014/01/30/268964572/de-blasio-drops-appeal-of-stop-and-frisk?ft=1&f=1070
defense attorney defense lawyer discrimination lawyers district attorney divorce atterney
Thursday, January 30, 2014
OPINION: Chemerinsky: God, Birth Control and Corporate America
Can a corporation claim to have religious beliefs and, if so, does it violate those beliefs to force the business to include contraceptive coverage in the health insurance it provides its employees? The U.S. Supreme Court has just granted review in two cases on the issue.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631180111&rss=rss_nlj
The Legal Turbulence Facing Amazon’s Drones
News of Amazon’s plans to use delivery drones surprised many, but the fact is that a number of companies are developing drones for commercial uses. However, before any of these commercial drones can take flight, they need to clear a series of legal hurdles, from winning FAA approval to sorting out liability and privacy issues. In this edition of Lawyer2Lawyer, host Bob Ambrogi invites industry lawyer Ben Gielow and Above the Law editor Elie Mystal to discuss the legal issues facing commercial drones and how they are likely to play out.
Ben Gielow is the government relations manager and general counsel for the advocacy sector of the Association of Unmanned Vehicle Systems International. He has been featured in interviews covering the concept of commercial drones since the beginning regarding what legislation and other requirements are necessary for us to see commercial drones in our airways.
Elie Mystal is the editor of Above the Law. A graduate of Harvard Law School, he left his life as a litigator to pursue a career as an online provocateur. He has written editorials for The New York Daily News, The New York Times, and appeared on MSNBC and Fox News.
Special thanks to our sponsor, Clio.
Ben Gielow is the government relations manager and general counsel for the advocacy sector of the Association of Unmanned Vehicle Systems International. He has been featured in interviews covering the concept of commercial drones since the beginning regarding what legislation and other requirements are necessary for us to see commercial drones in our airways.
Elie Mystal is the editor of Above the Law. A graduate of Harvard Law School, he left his life as a litigator to pursue a career as an online provocateur. He has written editorials for The New York Daily News, The New York Times, and appeared on MSNBC and Fox News.
Special thanks to our sponsor, Clio.
employment law employment law courses employment lawyer employment lawyer san diego employment lawyers
Leading-Edge Litigation Management Decision Support Technologies for Claims
This podcast looks at decision support technologies that can help claims organizations more effectively manage their litigation, specifically focusing on predictive modeling and decision tree analysis templates.
Learn what the "critical 20%" is and how technology can help identify these claims.
Find out how to get key insights into ongoing litigation strategy to get the most accurate assessment of fair settlement value.
Hear how claims organizations can better assess which are the "right claims to settle, at the right time."
Learn what the "critical 20%" is and how technology can help identify these claims.
Find out how to get key insights into ongoing litigation strategy to get the most accurate assessment of fair settlement value.
Hear how claims organizations can better assess which are the "right claims to settle, at the right time."
2013 Year in Review: E-discovery Embraces its Roots
The more things change, the more they stay the same. Although the French writer Jean-Baptiste Alphonse Karr certainly didn’t have legal technologies in mind when he wrote this famous epigram, his sentiments ring true to the current state of e-discovery. While 2012 was the battle ground in which the “disruptive” technology-assisted review and its early adopters emerged victorious, 2013 provided something of a “back to basics” approach as courts applied the fundamental tenets of e-discovery to the newer, more efficient technologies and methodologies that are revolutionizing e-discovery. In this edition of ESI Report, host and Director of Thought Leadership for Kroll Ontrack Michele Lange invites e-discovery expert Phil Favro to highlight this year’s key e-discovery cases, analyze key trends, and explore the predictions for the e-discovery realm of 2014.
Currently providing independent litigation counsel, Favro is a recognized expert in e-discovery, information governance, and data protection. He has advised technology companies and other enterprises regarding complex business disputes, and he has written over 50 byline articles and several law review pieces that have appeared in reputable publications such as the ACC Docket, Law Technology News, and the Michigan State Law Review.
Currently providing independent litigation counsel, Favro is a recognized expert in e-discovery, information governance, and data protection. He has advised technology companies and other enterprises regarding complex business disputes, and he has written over 50 byline articles and several law review pieces that have appeared in reputable publications such as the ACC Docket, Law Technology News, and the Michigan State Law Review.
green card lawyer immigration attorney immigration law immigration lawyer immigration lawyers
Dog Bite Injury Cases and Litigation
Dog bite injury cases are becoming more common when it comes to litigation. People can suffer serious injuries from dog bites, leaving children and adults with physical and even emotional trauma. Ringler Radio host Larry Cohen, along with colleague Brenda MacGregor, and special guest, Attorney Robin Gouveia from the firm d'Oliveira and Associates discuss the seriousness of dog bite injury cases, the use of a structured settlement in these specific cases and how these incidents can be prevented.
Source: http://ringlerradio.com/podcasts/ringler-radio/2013/10/dog-bite-injury-cases-and-litigation/
Townhome Neighbors Can’t Challenge Access
Plaintiff townhome owners do not have standing to challenge defendant developer’s use of a 50-foot easement that runs between a church and the townhome community for access and a connection to a proposed development with seven new homes; the Fairfax Circuit Court says plaintiffs have not shown they would suffer any particularized harm from installation ...
Source: http://valawyersweekly.com/2014/01/02/townhome-neighbors-cant-challenge-access/
corporate law corporate lawyer criminal attorney criminal defence lawyer criminal defense
Supreme Court rules for steel company in labor case
[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] Monday in Sandifer v. US Steel Corp. [SCOTUS Blog backgrounder] that employees are not entitled to compensation under the Fair Labor Standards Act (FLSA) [text, PDF] for time spent changing in and out of protective gear. The FLSA governs minimum wages and maximum hours for certain employees and specifically excludes the time it takes to change clothes from hours worked, unless otherwise specified in a collective bargaining agreement. A group...
Source: http://jurist.org/paperchase/2014/01/supreme-court-rules-for-steel-company-in-labor-case.php
Northern Cyprus becomes final European state to decriminalize homosexuality
[JURIST] The Parliament of Turkish-controlled Northern Cyprus [official website, in Turkish] passed a bill decriminalizing homosexual relations between men [text, PDF, in Turkish], making it the last European territory to do so. Like the anti-homosexuality laws of Isle of Man and Guernsey [JURIST op-eds], Northern Cyprus's law criminalizing homosexual relations was a holdover from British colonial rule, although the island became independent in 1960. In 1974, the island split between its Turkish and Greek parts; Greek Cypriots decriminalized homosexual acts...
private lawyer pro bono lawyers probate attorney real estate attorney real estate lawyer
Wednesday, January 29, 2014
Project Aims To Attract, Train Public Defenders
Atlanta-based nonprofit Gideon's Promise has launched a new program called the Law School Partnership Project, aimed at making it easier for Southern public defenders to hire talented new law graduates.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202631276654&rss=rss_nlj
Plaintiffs Seek to Consolidate Target Data Breach Suits
Attorneys who filed class actions against Target Corp. over its security breach last month have moved to coordinate the swelling tide of litigation, estimated at nearly 50 lawsuits.
Source: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202637342683&rss=rss_nlj
lawyer office lawyers legal legal advice legal advice online
FCPA Compliance — A Case for Integrated Technology Solutions
This podcast focuses on how technology can help companies strengthen their FCPA compliance programs and make them more effective and defensible. Learn the importance of a technology solution that is configurable to address a company's specific business needs that include: regulatory intelligence, policy management, monitoring and ongoing auditing of controls, and investigation of incidents and allegations.
Source: http://traffic.libsyn.com/techexperts/FCPA_Compliance_A_Case_for_Integrated_Technology_Solutions.mp3
F. Lee Bailey and Kenneth Fishman Discuss Excellence in Cross Examination
Cross-examination is a skill that every trial lawyer hopes to master, but few do. In the new book, Excellence in Cross Examination, published by Thomson Reuters, two giants of the trial bar, F. Lee Bailey and Judge Kenneth J. Fishman, share their insights and lessons on how to excel in cross-examination. In this edition of Lawyer2Lawyer, host Bob Ambrogi invites Bailey and Fishman to discuss their newest book and the key skills lawyers need to be effective in cross.
Having represented high-profile names such as O.J. Simpson, Dr. Sam Sheppard, and Captain Ernest Medina, F. Lee Bailey is known for his successful career as a trial lawyer in criminal and civil cases. He has been a licensed attorney for more than 50 years, authored and co-authored 21 books, and is a licensed private investigator. In addition to his legal career, he has worked as a designated naval aviator with the U.S. Marine Corps.
The Honorable Kenneth J. Fishman was a practicing attorney for nearly 30 years before he moved to the bench. This marks his tenth year as an associate justice for the Massachusetts Superior Court. A former law partner with Bailey, he is a frequent speaker and lecturer for the Massachusetts Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers, and The Massachusetts Bar Institute.
Special thanks to our sponsor, Clio.
Having represented high-profile names such as O.J. Simpson, Dr. Sam Sheppard, and Captain Ernest Medina, F. Lee Bailey is known for his successful career as a trial lawyer in criminal and civil cases. He has been a licensed attorney for more than 50 years, authored and co-authored 21 books, and is a licensed private investigator. In addition to his legal career, he has worked as a designated naval aviator with the U.S. Marine Corps.
The Honorable Kenneth J. Fishman was a practicing attorney for nearly 30 years before he moved to the bench. This marks his tenth year as an associate justice for the Massachusetts Superior Court. A former law partner with Bailey, he is a frequent speaker and lecturer for the Massachusetts Association of Criminal Defense Lawyers, National Association of Criminal Defense Lawyers, and The Massachusetts Bar Institute.
Special thanks to our sponsor, Clio.
government lawyer green card lawyer immigration attorney immigration law immigration lawyer
Johnny Law Steps In To Stop Graffiti Reign Of Terror
Without Johnny Law, there would be chaos, right? In this situation, Johnny Law needs to step off. In the Australian city of Whitehorse, little children drawing with chalk in front of a cafe have been deemed to be … taggers! As reported by The Whitehorse Leader:
Children drawing with chalk on a Nunawading footpath have been labeled graffiti artists.
THEY MUST BE STOPPED.
Whitehorse Council has drawn the line over pre-schooler’s scribbles outside White’s Cafe in the Mt Pleasant Rd shopping strip.
Sally White, who runs the family-friendly cafe with husband PJ, said she was told by a council officer that the children’s drawings were graffiti and had to stop, after a complaint from a resident.
A single complaint? Was it the nature of the drawings?
Mrs White, who has boys aged three and four, said the cafe had allowed children to draw on the footpath of the quiet shopping strip for the past 12 months.
She said the drawings were usually stick figures, scribbles, fish or pirates.
Nunawading artist and author Lucienne Noontil, a cafe regular, said she could not believe anyone would find them offensive. “I love the drawings and seeing the kids be creative,’’ she said.
First Tunisia, then Egypt, Wisconsin, Bahrain, Yemen, Syria, and now … Nunawading!
Ms Noontil said stopping the drawings would dampen the strong community spirit of the cafe.
Mrs White said she and the children were all in tears when told the drawing had to stop so they had decided to still allow it.
HELL NO, WE WON’T … stop letting the children create art that enriches their lives, enriches the community, and harms nobody… But wait! What about the mess?
Mrs White said they would be willing to wash the drawings off each afternoon when they shut or apply for a permit from council if that was relevant.
Curse you, reasonable lady! But Johnny Law is unmoved by any of this.
Council’s general manager corporate services Peter Smith said the drawings were in contravention of council’s Local Law No. 1 2006 and the state government’s Graffiti Act 2007.
“No matter the age of the person, drawing on public property is considered graffiti,’’ he said.
Let it go, Pete. Let it go. That appears unlikely.
Mr Smith said the council would be obliged to issue a compliance notice if the drawing continued or if a further complaint was received.
Silly complainer. Silly Council. If you’re ever in Whitehorse, make sure you patronize White’s Cafe, because Mrs. White is certainly deserving of your support for her pro-children, pro-art, anit-stupidity stance.
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/Iu5w7T_XKe4/s-18.html
criminal lawyer criminal lawyers cyber law defense attorney defense lawyer
Safety first
I’m pleased to note that California’s AB 1371, known as the Three Feet for Safety Act, becomes law in 2014. California is the 23rd state to establish a minimum buffer zone around bicycles that ride on public roads. It’s about time! Motorists passing a bike must allow at least three feet of space between the car and the bike, or slow to a safe and reasonable speed. As a cyclist myself,
I know how dangerous the roads can be; in 2011, I was hit by a car making a left turn, failing to yield the right of way to me. The driver just didn’t “see” me. This literally changed my life and I still feel the impact of that accident. Drivers passing too close is one more problem behavior on the roads, especially with new hybrids that make little or no sound of warning as they approach.
Be careful out there on the roads this holiday season, and always. Selfishly, I want you back as a reader and commentator. Happy holiday.
Source: http://feeds.lexblog.com/~r/LawBizBlog/~3/etGhmwO_gt4/
Can’t Stand The Thought Of Living Without Your Purebred Miniature Vietnamese Potbellied Pig?
You’ve never been a dog or cat person. No, you have always been drawn to purebred miniature Vietnamese potbellied pigs. But folks in so many places just don’t understand. Well, in Atlantic Beach, Florida, you’ll fit right in. Check out this portion of the municipal code on animals:
Sec. 4-7. Keeping or maintaining certain animals in the city.
(a) It shall be unlawful for any person to keep or maintain horses, mules, cows, cattle, chickens, poultry, or goats in the city, except for in special events, as approved by the city manager.
(b) It shall be unlawful for any person to keep a hog or hogs upon any property or premises located within the limits of the city, with the sole exception of a bona fide, purebred miniature Vietnamese potbellied pig which is kept for the sole purpose of providing human companionship and which is in compliance with all other applicable provisions of this Code. Miniature Vietnamese potbellied pigs may be kept as household pets under the following conditions …
Welcome! (You can find the rest of this code section – and there is a lot – here. Click on “Chapter 4 – Animals” then “Article 1″ then Sec. 4-7. )
Source: http://rss.justia.com/~r/LegalJuiceCom/~3/oGpdSIhQr4s/aa-4.html
dui attorney dui lawyer dumb laws dwi lawyer electronic power of attorney
Tuesday, January 28, 2014
The Butcher, The Baker and FISA
The House Judiciary Committee will be holding a hearing today on FISA, the NSA and some guy named Snowden. Few people are aware of this, as their time and attention are consumed by more important legal concerns, as regularly voice by legal entertainer, Nancy Grace. But it will happen nonetheless.
Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Stewart Baker, who harbors some peculiar notions when it comes to the things the government does to keep us safe, will be testifying, and he has much to say about each of these subjects, and then some. While his testimony of extraordinary breadth is all worth reading in a morbid fascination sort of way, it spans far more than can be discussed here. Rather than try to overreach, let's take a look-see at just one small piece of his puzzle.
To be blunt, one of the reasons I’m here is that I fear we may repeat some of the mistakes we made as a country in the years before September 11, 2001. In those years, a Democratic President serving his second term seemed to inspire deepening suspicion of government and a rebirth of enthusiasm for civil liberties not just on the left but also on the right. The Cato Institute criticized the Clinton Administration’s support of warrantless national security searches and expanded government wiretap authority as “dereliction of duty,” saying,“[i]f constitutional report cards were handed out to presidents, Bill Clinton would certainly receive an F–an appalling grade for any president–let alone a former professor of constitutional law.” The criticism rubbed off on the FISA court, whose chief judge felt obliged to give public interviews and speeches defending against the claim that the court was rubber-stamping the Clinton administration’s intercept requests.
This is where I should insert a joke about the movie “Groundhog Day.” But I don’t feel like joking, because I know how this movie ends.
Gratuitous slams at Democrats aside, given that a two-term Republican in the middle didn't do any better, can you guess where Baker is heading?
Rarely does a paragraph so grossly distort cause and effect, correlation and causation, while at the same time trivializing and blaming those darned "civil liberties advocates on both sides of the aisle." Maybe not Jefferson and Madison, but their elected descendants who, at least in Baker's mind, put us at risk for terrorism by the horrors of defending civil liberties, those things that make us who and what we are. And so, when a law enforcement task force of the FBI found out in August of 2001 that al Qaeda had sent two dangerous operatives to the United States, it did … nothing. It was told to stand down; it could not go looking for the two al Qaeda operatives because it was on the wrong side of the wall. I believe that FBI task force would have found the hijackers – who weren’t hiding – and that the attacks could have been stopped if not for a combination of bad judgment by the FISA court (whose minimization rules were later thrown out on appeal) and a climate in which national security concerns were discounted by civil liberties advocates on both sides of the aisle.
This is like a trick for fools, which makes it perfect for congressional testimony. As if the FBI having been on the wrong side of the "wall" before 9/11 was the cause of America's failure to stop the attacks. Because the FBI so effectively stopped others, say, Tsarnaev, when they had no wall to blame it on? Or that there was no other law enforcement apparatus in existence for the FBI to do its job, except to engage in a national secret colonoscopy but be forbidden from telling the patient the results.
There has never been any dispute that law enforcement would be both easier and more effective if we would just let them ignore all those nasty constitutional rights that the citizenry preserved for itself when deciding to let a government exist. Think about how much safer we would be if police could just enter our homes at will and search for whatever they want, or just for fun. You never know what they might stumble on.
That's what Baker considers the right way to go, because he believes that government can be trusted, that government is well-intended and would rarely abuse the vast power he would give it. Not that it would never abuse the power, but in those very rare instances where something went beyond his vision of propriety, government would also be fully capable of policing itself. Ronald Reagan, for all his faults, was elected on the platform that government was the problem. Baker disagrees.
I realize that this story is not widely told, perhaps because it’s not an especially welcome story, not in the mainstream media and not on the Internet. But it is true; the parts of my book that describe it are well-grounded in recently declassified government reports. More importantly, I lived it. And I never want to live through that particular Groundhog Day again. That’s why I’m here. The argument is reminiscent of the mother whose child was tragically killed, and goes before a legislative body to ask that no other child ever again be harmed. There is enormous sympathy for her loss, but whatever killed the child happens a million times without incident, and then once with a terrible outcome. What she is asking is that the million times be eliminated so that the one time never happen. It's understandable, as she speaks from personal grief, but it's an unsound basis to craft law. Baker plays the same cards.
Notice how he ties it to himself personally, as he was there in government service when the government failed to stop a tragic event. Of course, it wasn't the government's fault that it failed, but those "civil liberties advocates" who tied the government's hands from saving us. That's the claim, even though it relies on a logical fallacy that Baker, a smart guy, hopes no one on the committee will see.
Had there been no wall, and the FBI free to break into bedrooms and telephone calls at will, there is no correlation between their putative claim that they would have been able to stop 9/11. There is no basis to claim they would have done anything more than interrogate the two suspected terrorists and let them go. There is no basis to claim that the other terrorists, even if the two were held or expelled, wouldn't have flown planes into buildings. There is no line to be drawn from point A to point Z.
But Stewart Baker will be testifying before the House Judiciary Committee today and will tell them these things. And I won't. And you won't. And the wheels of government will grind on.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/17/the-butcher-the-baker-and-fisa.aspx?ref=rss
FTC Wins Antitrust Challenge Against Idaho Health System
The FTC on Friday won another favorable ruling against a healthcare merger, the latest in a string of recent court wins that have made the agency a formidable presence in the industry.
criminal justice lawyer criminal law criminal law cases criminal laws criminal lawyer
4th Edition: Better than Batman's Belt: Our Favorite Utilities
Holy downloadable data directors! In this edition of "The Digital Edge: Lawyers and Technology" Jim Calloway and Sharon Nelson discuss their favorite software utilities.
Source: http://feeds.feedburner.com/TheDigitalEdgeLawyersAndTechnology
It's Not Easy Being Weev (Update)
Appellants and amici briefs are now in at the Third Circuit on the appeal of Andrew Auernheimer's conviction for somehow violating the Computer Fraud and Abuse Act. I say "somehow" as the government was never pinned down on whether it was exceeding authorized access or unauthorized access. But they were clear that what he did was wrong, wrong enough to get him convicted and sentence to 41 months imprisonment.
Weev didn't help himself. Whether he wanted to be a martyr to the cause of geekdom or just unwilling to win except on his terms isn't clear. But his lawyer, Tor Eckland, couldn't control him, and had enough on his hands trying to defend Weev in what I believe to be his first trial*. While the prosecution was huge within the computer hacker community, it didn't garner the attention of Lori Drew's prosecution, lacking a dead child. But make no mistake, Weev's prosecution raises issues of monumental significance for all computer users.
Orin Kerr, who joined the defense team on appeal, gives a summary of the case.
Here are the basic facts. When iPads were first released, iPad owners could sign up for Internet access using AT&T. When they signed up, they gave AT&T their e-mail addresses. AT&T decided to configure their webservers to “pre load” those e-mail addresses when it recognized the registered iPads that visited its website. When an iPad owner would visit the AT&T website, the browser would automatically visit a specific URL associated with its own ID number; when that URL was visited, the webserver would open a pop-up window that was preloaded with the e-mail address associated with that iPad.
The basic idea was to make it easier for users to log in to AT&T’s website: The user’s e-mail address would automatically appear in the pop-up window, so users only needed to enter in their passwords to access their account. But this practice effectively published the e-mail addresses on the web. You just needed to visit the right publicly-available URL to see a particular user’s e-mail address. Spitler realized this, and he wrote a script to visit AT&T’s website with the different URLs and thereby collect lots of different e-mail addresses of iPad owners. And they ended up collecting a lot of e-mail addresses — around 114,000 different addresses — that they then disclosed to a reporter. Importantly, however, only e-mail addresses were obtained. No names or passwords were obtained, and no accounts were actually accessed.
Or to put it a bit more succinctly, Weev and Spitler stumbled on pages that were publicly accessible, but AT&T figured no one would find because there was no way to access them other than to have its iPad or, as stumble on them. They then did what geeks do, and exploited their discovery to see how far they could go. Rather than hand it over nicely to AT&T so it could cover its tracks and deny its screw-up, they gave it to a reporter to publish. AT&T was pissed, and the government was happy to prosecute as payback for quick and easy disclosure of your cellular communications the heinous crime of publicly embarrassing AT&T for being a computer idiot.
The appellant's brief, after a disturbing opening to the main argument that repeats the conventional wisdom from 1986 analogizing computers to physical trespass, takes the view that this just isn't a crime. As the pages were public, it cannot be unlawful access. The brief reads more academic than advocate, but does an admirable job of making its points.
There are two amici briefs, one arguing that this is how everybody uses the internet, and the other arguing that this is how sophisticated internet security experts use the internet, both reaching the same conclusion that affirmance of Weev's conviction would criminalize normal and lawful practices.
As everybody else involved relies on analogies, it seems appropriate despite my view that it's critical to stop using real world analogies to explain digital world conduct, to do the same. The prosecution's argument is that just because someone leaves their door unlocked doesn't mean a person can walk in and take what he wants. The defense argument is that when someone leaves their stuff in front of a picture window, passersby commit no crime by looking in and seeing what the person put on display. Neither analogy strikes me as fully satisfying.
The question for the rest of us is where the line is drawn between lawful and unlawful conduct based on a law crafted at the birth of public computer use and before there was any world wide web to consider. The language of the CFAA fails miserably to provide an answer, and there is certainly no "originalist" view since there was no internet in existence. What we are left with is empty, meaningless language being shoehorned into technology that didn't exist. It might have seemed like a good idea back in 1986, but we're paying for it now.
Nonetheless, Congress can't be bothered to do its job of crafting a law that might apply, and the court is left with trying to decipher criminality from inapt words and their limited grasp of how the tubes work (or that of their kids, their law clerks, or maybe the kid down the street).
The prosecution has a huge glaring hole that needs answering: Is there any middle ground for a URL that can be accessed without hacking a password but is otherwise not intended to be found, accessed or used except by a discrete, chosen group of users? The government wants the crime to depend on the subjective and transitory intent of the website owner, where "unauthorized" is defined as undesired. The defense wants a brightline test that says if it can be publicly accessed, then there can be no crime.
The government's position is not only untenable, but presents a threat to users that can't be tolerated. And indeed, it's so highly subjective, and selective, that it ignores that Google et al. violate it constantly with impunity. Do we want cookies and bots crawling all over us, capturing our personal info to feed back to people so they can sell us crap? I don't think so. But it prevailed below anyway.
The problem now is that the burdens shift on appeal, and it's the appellant's position that will be subject to scrutiny. Is there no limit to what we can access on the internet, as long as we don't hack the password? What if all the surrounding circumstances leave us with no doubt that the website owner doesn't want anybody coming in uninvited, so that no reasonable person can not be aware that he's entering a URL where he isn't welcome? Is that still okay?
Since the lines are drawn at polar extremes, and the arguments remain couched in poor analogies, and the judges will have a terrible time getting into the mindset of sophisticated computer users who think nothing of screwing around with user agents to see what they can find, and Weev felt compelled to handle himself in the typical, snarky, computer whizkid way that tends to just piss the crap out of everybody who isn't a snarky computer whizkid, this is going to be a tough fight.
But there remains one detail that I would have pounded hard, far harder than either the appellant or amici. Fair notice requires that the language of the CFAA, for smarter or stupider, state clearly what constitutes criminal conduct so that a person will know what not to do. By the Rule of Lenity, the failure of the law to adequately define a crime given the state of technology as it currently exists must resolve all ambiguities in favor of the defendant.
While no one knows what Congress might do if it is forced to recraft the CFAA, and they could make it even worse, what seems clear now is that it is far too unclear to imprison anyone whose conduct falls within that middle ground of not hacking a password and breaking through a brick wall. Maybe they would criminalize what happened here, but until the law makes clear where the line is drawn, the government can't just make it up at will. And the Third Circuit should not be so activist as to give a 2013 meaning to a 1986 law that the government pulls out of its butt to nail Weev.
Weev's conviction must be reversed, despite his attitude and mouth, because the rest of us used the internet too and if Weev is a criminal, so too are we all.
* I hasten to add, lest anyone think otherwise, that I think Tor did an exceptional job with this case, even the more remarkable given the circumstances.
Update: Via Volokh, the amicus brief of the National Association of Criminal Defense Lawyers has just become available. While I'm still going through it, my initial impression is that it's excellent, and fills in some of the gaps in the other briefs. Notably, putting them all together, the argument on behalf of Weev is overwhelming.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/09/its-not-easy-being-weev.aspx?ref=rss
personal injury attorneys personal injury lawyer personal injury lawyers power attorney power of attorney
Plaintiff Can Access Police Investigation Records
In a plaintiff’s suit involving a charge that he failed to make a right-hand turn signal, the Richmond Circuit Court will resolve a discovery dispute by allowing plaintiff discovery of an internal affairs investigation through documents provided by defendant for in camera review. Defendants invoke a provision of the Freedom of Information Act, Va. Code ...
Source: http://valawyersweekly.com/2014/01/02/plaintiff-can-access-police-investigation-records/
Plaintiff Can Access Police Investigation Records
In a plaintiff’s suit involving a charge that he failed to make a right-hand turn signal, the Richmond Circuit Court will resolve a discovery dispute by allowing plaintiff discovery of an internal affairs investigation through documents provided by defendant for in camera review. Defendants invoke a provision of the Freedom of Information Act, Va. Code ...
Source: http://valawyersweekly.com/2014/01/02/plaintiff-can-access-police-investigation-records/
Monday, January 27, 2014
Straight From The Hole
It's far easier to wrap your head around torture when it involves the infliction of active pain. That doesn't make passive pain, the infliction of often unbearable psychological punishment, an less torturous. And it happens regularly, and many time arbitrarily, as explained in an op-ed by Wilbert Rideau, who served 44 years for manslaughter in Louisiana.
Before you dismiss Rideau as a killer who deserved whatever he got, bear in mind that stories from the inside aren't told by saints. Every once in a while, a former inmate emerges with the erudition necessary to put into words the world that most of us never knew existed. When this happens, it's a window through which we need to look. Rideau offers a view of solitary confinement, the hole.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Before you dismiss Rideau as a killer who deserved whatever he got, bear in mind that stories from the inside aren't told by saints. Every once in a while, a former inmate emerges with the erudition necessary to put into words the world that most of us never knew existed. When this happens, it's a window through which we need to look. Rideau offers a view of solitary confinement, the hole.
I know something about solitary confinement, because I’ve been there. I spent a total of 12 years in various solitary confinement cells. And I can tell you that isolating a human being for years in a barren cell the size of a small bathroom is the cruelest thing you can do to a person.Deprived of all human contact, you lose your feeling of connectedness to the world. You lose your ability to make small talk, even with the guard who shoves your meal through the slot in the door. You live entirely in your head, for there is nothing else. You talk to yourself, answer yourself. You become paranoid, depressed, sleepless. To ward off madness, you must give your mind something to do. In 1970, I counted the 358 rivets that held my steel cell together, over and over. Every time the walls seemed to be closing in on me, I counted them again, to give my mind something to fasten on to.
Without having been there, it's likely inconceivable to understand what happens to a mind in isolation. Some of us have trouble being alone for an hour, an evening, a day. Add day upon day, year upon year. But not the way it is for us, where we still have access to television or internet, even if there is no other living person around. No, this is completely different.
But to add insult to injury, don't leap to the assumption that if a prisoner ends up in the hole, he must have done something pretty bad to deserve it.
In a world where authorities exercise absolute power and demand abject obedience, prisoners are almost always going to be on the losing side, and they know it.
The typical inmate doesn’t want trouble. He has little to gain and too much to lose: his job, his visits, his recreation time, his phone privileges, his right to buy tuna, ramen and stale bread at inflated prices in the commissary. The ways even a bystander to the most peaceful protest can be punished are limited only by the imagination of the authorities.
Punishment can be deserved or not. There's no due process in prison. There's no one to complain to about being punished based on a false accusation, a trumped up allegation, a guard pissed off by an attitude. Authorities own the lives of prisoners, and can be as harsh as they want to be, as arbitrary as they feel like. And there isn't a damn thing you can do about it.
Rideau explains that the prison protests in California are an outgrowth of a system run amok and no other means of addressing their grievance.
And yet, sometimes things get so bad that prisoners feel compelled to protest, with work stoppages, riots or hunger strikes. On July 8, some 30,000 inmates in the custody of the California Department of Corrections went on a hunger strike to demand improvements in prison conditions. Their biggest complaint was the runaway use of solitary confinement, the fact that thousands of prisoners are consigned to this cruelty indefinitely, some for decades.
While prisoners are sentenced to incarceration, no judge sentences them to isolation for decades. There is no requirement that any neutral party review the decision to inflict this torture on another human being. It can be imposed for a sound reason or no reason at all. Who is to disagree? But no matter what the reason or nonreason, to put a person in the hole for years, for decades, is to impose psychological torture of a terrible kind on a human being. And there is nothing, absolutely nothing, the prisoner can do about it.
In California, inmates did the only thing left for them to do, protest. Not too many of us care about what happened to "criminals." After all, bad dudes who did bad things to other people. A pox on them. They get what they deserve and their out of sight, out of mind. But there is good reason to give them just a little bit of though. For one thing, they are still people, and we are still purportedly a civilized society that doesn't condone the needless brutal treatment of people. But if you lack anything remotely resembling empathy, than do it for your own sake:
Why should you be concerned about the inhumane conditions of prolonged solitary confinement, with all the social, emotional and mental deterioration that it entails? Well, every year men from California’s Pelican Bay and other supermax prisons around the nation are released directly from the vacuum of their cells into free society, to live and work among you and your loved ones. As a matter of self-preservation, maybe we should all join the prisoners’ request for rehabilitative opportunities that will improve the mental health of those in solitary.
Go say "hi" to the guy who moved in down the block kids. So what if he spent the last two decades in the hole and seems a bit odd. I'm sure he'll get over it.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/17/straight-from-the-hole.aspx?ref=rss
All Zimmerman or All Trayvon Martin
Many criminal defense lawyers studiously ignore cases that catch the public's attention. They just aren't that legally interesting, even if the facts or issues give rise to popular passion. And so it's been for the trial of George Zimmerman for murder 2º in the killing of Trayvon Martin. Aside from John Steele's having raised the question of the ethics of overcharging, there hasn't been a whole lot to write about.
Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter.
As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.
While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.
That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out.
As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.
But most damning is the prosecution's second request of Judge Debra Nelson.
It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.
For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something.
While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Now that the trial is coming to a close, however, an interesting question, both legal and tactical, has arisen: would it be best for the defense to take an all-or-nothing approach, murder 2º or acquittal, or a split-the-baby approach, charging the jury on the lesser-included crime of manslaughter.
As Jacob Gershman writes at the Wall Street Journal law blog, the die has been cast.
Notwithstanding what either party individually contends, it remains the judge's responsibility to decide whether to submit a lesser-included offense to the jury if one party requests it. So if the prosecution felt sufficiently secure in its case that it would get a murder conviction, while the defense feared conviction and was looking to find an out, they would be fighting against a manslaughter instruction lest the jury, feeling any sympathy toward the defendant, compromise. That's not happening here.George Zimmerman was charged with second-degree murder in the shooting death of Trayvon Martin. So why do jurors now have an option of convicting him of manslaughter?
The short answer: the judge said they could.
Yet the option, which was supported by prosecutors but raised the hackles of the defense, is not clearly spelled out in Florida law.
While it may be that Zimmerman's claim of self-defense, that he feared his life to be so endangered as to allow him to lawfully kill another person, isn't entirely persuasive, there is strong support for his claim that he was in fear, even if he overreacted.
Florida law works differently. There’s no slicing and dicing of self-defense. The penal code doesn’t recognize “imperfect self defense.” The law forces juries to either believe that someone had a right to act in self-defense or is a murderer.
There is a loophole, however, as illustrated by Mr. Zimmerman’s trial, which entered into closing arguments Thursday.
In Florida, a judge can choose to give juries a middle-of-the-road option, saying it can convict someone of voluntary manslaughter if it isn’t convinced that the defendant acted out of “ill will, hatred, spite, or evil intent.” Voluntary manslaughter is a catch-all offense that includes a killing caused by “culpable negligence.”
That the prosecution chose to shoot low and hope for a compromise rather than a murder conviction, while the defense went for all-or-nothing and fought the lesser charge, reflects their view of the relative strength of their case. Not surprisingly, the prosecution is showing some serious weakness in its faith that its murder 2 charge will bear out.
As John Steele argued before trial, there is a strong current of thought that the prosecution followed a political path, appeasing angry voices demanding Justice for Trayvon without giving the facts of the case much thought. It appears that the trial evidence has borne this out to a large extent.
But most damning is the prosecution's second request of Judge Debra Nelson.
So a reduced charge of manslaughter still isn't sufficient for the prosecution to reach its comfort zone, and it's digging even deeper for an even lesser charge of murder 3º. Not only is that damning and humiliating, but as West says, it's "outrageous." What's next, trespassing because Zimmerman walked on somebody else's lawn?Prosecutor Richard Mantei argued that instructions for third-degree murder should be included on the premise that Zimmerman committed child abuse when he fatally shot 17-year-old Trayvon Martin because Martin was underage.
But defense attorney Don West called the proposed instruction "a trick," and he accused the prosecutor of springing it on the defense at the last minute.
"Just when I didn't think this case could get any more bizarre, the state is alleging child abuse?" West said. "This is outrageous. It's outrageous the state would seek to do this at this time."
It appears that while the judge hasn't tossed the murder 2º count as being legally insufficient, which would seem to address the ethical question of the charge being within the very large ballpark of reasonable charges under the facts of the case, neither the judge nor the prosecution has much faith that the jury will convict. The prosecution is now grasping at straws, hoping to get a conviction for anything it can.
For the defense, given the evidence that's come in, this isn't a good thing or particularly fair thing. They tried a case to the charge, and are now faced with the possibility of a compromise verdict from a jury that might feel badly enough at the death of a young man (which is quite understandable, regardless of whether he contributed to it) to feel that Zimmerman ought to be convicted of something.
While this isn't the way it's supposed to go in theory, it's a nightmare for the defense, having fought the charge only to face being skewered by a compromise.
© 2007-13 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.
Source: http://blog.simplejustice.us/2013/07/12/all-zimmerman-or-all-trayvon-martin-2.aspx?ref=rss
conservator copyright lawyer corporate law corporate lawyer criminal attorney
Life-Support Battle Over Pregnant Texas Woman Heads To Court
Marlise Munoz's husband says she is brain-dead and the health of the fetus in question, but the hospital says state law compels it to keep the woman alive. A judge hears the case Friday.
» E-Mail This » Add to Del.icio.us
find lawyer free attorney consultation free lawyer free lawyer advice free lawyer consultation
SEC Announces 2014 Examination Priorities for Investment Advisers
On January 9, 2014, the Securities and Exchange Commission released its examination priorities for 2014 (the “2014 Exam Priorities Release”), covering a wide range of issues at financial institutions, including investment advisers and investment companies, hedge funds and private equity funds. The 2014 Exam Priorities Release highlights a number of areas and key risks that the SEC will be monitoring and examining in 2014. The SEC has identified the following core risk areas for investment advisers:
- Safety of Assets and Custody—Through the National Exam Program (the “NEP”), the SEC’s Office of Compliance Inspections and Examinations has identified the following common failures relating to the custody rule under the Investment Advisers Act of 1940 (the “Advisers Act”):
- failures to realize that the investment adviser has custody;
- failures regarding the surprise exam requirement or failures to comply with the audited financials rule;
- failures regarding the qualified custodian requirement; and
- failures regarding the “audit approach”.
- Conflicts of Interest Inherent in Certain Investment Adviser Business Models—The SEC notes that non-compliance with the Advisers Act often arises from unaddressed conflicts of interest, identifying the following common types of conflicts related to investment advisers and investment companies:
- Compensation arrangements for the adviser, with a particular focus on undisclosed compensation arrangements and their effect on recommendations made to clients;
- Allocation of investment opportunities;
- Controls and disclosure associated with side-by-side management of performance-based and purely asset-based fee accounts;
- Risk controls and disclosure, particularly for illiquid investments and leveraged investment products and strategies; and
- Higher risk products or strategies targeted to retail (and especially retired or elderly) investors.
- Marketing/Performance—The SEC notes that it will review the accuracy and completeness of advisers’ claims about their investment objectives and performance. Of particular note for advisers to hedge funds and private equity funds, the SEC has indicated that it will seek to review the use and disclosure of composite performance figures, performance record keeping and compliance oversight of marketing.
The SEC has also identified new and emerging issues and initiatives and policy topics in this release, including the following that relate to investment advisers:
- Presence Exams—The SEC will continue the 2012 initiative to examine a significant percentage of the advisers registered since the effective date of Section 402 of the Dodd-Frank Act. (The vast majority of these new registrants are advisers to hedge funds and private equity funds that were not registered or regulated by the SEC prior to the Dodd-Frank Act and that have never been examined by the SEC.) The five key focus areas of these examinations are:
- marketing,
- portfolio management,
- conflicts of interest,
- safety of client assets, and
- valuation.
- Never-Before Examined Advisers—This SEC initiative will address advisers that have never been examined and are not part of the presence exam initiative. The SEC will utilize a number of strategies to conduct focused, risk-based examinations of the adviser population that has been registered for more than three years but has not yet been examined by the NEP.
- Wrap Fee Program—The SEC will assess whether advisers are fulfilling their fiduciary and contractual obligations to clients and will review the processes in place for monitoring wrap fee programs recommended to advisory clients, related conflicts of interest, best execution, trading away from the sponsor, and disclosures.
- Quantitative Trading Models—The SEC will examine investment advisers with substantial reliance on quantitative portfolio management and trading strategies and assess, among other things, whether these firms have adopted and implemented compliance policies and procedures tailored to the performance and maintenance of their proprietary models, including such procedures as (i) evaluating if any models are used to manipulate the markets, (ii) reasonably review or test the models and their output over time, (iii) maintaining proper documentation within required books and records, and (iv) maintaining a current inventory of all firm-wide proprietary models.
- Payments for Distributions in Guise—The SEC will continue its review of the variety of payments made by advisers and funds to distributors and intermediaries, the adequacy of disclosure made to fund boards about these payments, and boards’ oversight of the same. The SEC will assess whether such payments are, in fact, payments for distribution and preferential treatment.
- Securities Lending Arrangements—The SEC will examine securities lending arrangements to determine whether they comply with exemptive orders and evaluate consistency with relevant no-action letters.
We also note that OCIE and the Asset Management Unit of the SEC’s Division of Enforcement will conduct a compliance outreach program for chief compliance officers and other senior personnel of investment advisers and investment companies on January 30, 2014 at the offices of SEC’s headquarters in Washington, D.C. The agenda for the day-long program will cover OCIE’s examining priorities for 2014, private fund advisers, registered investment companies, the role of the chief compliance officer (“CCO”), and asset valuation issues. In person attendance is limited to 500 persons, but others may view the webcast at www.sec.gov. Investment adviser and investment company CCOs will be given priority for in person attendance if the program exceeds its 500 in person cap. You can obtain additional information about the outreach program through ComplianceOutreach@sec.gov.
For further information regarding the foregoing, please contact either Thomas Devaney at (212) 634-3042 or Jung Yeon Son at (650) 815-2676.
NLRB: Firing for Facebook posting was legal
Let the NLRB's press release tell the story:
The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. [Decision here]The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.
The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.
In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.
The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.
The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.
As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.
However, the three-member panel differed in its opinions of a “Courtesy” rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.
Dissenting, Member Brian E. Hayes found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.
The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.
Source: http://www.lawmemo.com/blog/2012/10/nlrb_firing_for.html
criminal law cases criminal laws criminal lawyer criminal lawyers cyber law
Former Va. Gov. Bob McDonnell, Wife Plead Not Guilty
Both were released on their own recognizance and ordered not to leave the country. The McDonnells are facing corruption charges stemming from gifts they received from a political donor.
Subscribe to:
Posts (Atom)